How Process Battles Monkey-Wrench Policy

Arguments over process are over policy too.

Arguments over process, it's sometimes said, are really arguments over policy. Two recent controversies—one national, one in Virginia—prove it. But they also prove two other things: that process still matters, and that ignoring process can impede policy.

This past Monday a federal judge temporarily halted the Obama administration's directive on accommodating transgender students in public education, at the behest of 13 states that had sued to block it.

The states argue that the administration improperly promulgated new regulations outside of the normal rule-making process, and U.S. District Court Judge Reed O'Connor said they had a good chance of prevailing on that point.

But the states made the challenge in the first place because they clearly don't like the substance of the directive.

Alabama Attorney General Luther Strange says he objects to "social experimenters in Washington" writing state policies about bathroom use. What he really means is that he objects to letting members of one biological sex use the bathrooms and locker rooms designated for use by the other biological sex, regardless of their self-identification.

Conservatives tend to resist the idea that gender can be fluid and non-binary, and have pushed back hard against it, asserting (among other things) that transgenderism is merely a mental disorder similar to anorexia.

It's a fair bet that if the Education Department had issued a directive requiring transgender students to use the bathroom that aligns with their anatomical sex, Republicans would have cheered, and let the procedural details drift away with the tide—while liberals filed motions full of procedural arguments in court.

But procedure matters either way. Handing down an edict as the Obama administration did ignores a number of valid concerns that deserve a better airing. For instance, there's a real question about the status of gender-fluid athletes. Earlier this year a transgender student won an all-state track and field award by competing against girls, and this year the Olympics accepted transgender athletes for the first time.

This opens up a big can of worms, and has the potential to do away with gender segregation in sports altogether. Transgender advocates contend that discrimination on the basis of gender identity is wrong. But the only difference between a biological male who identifies as female and a biological male who identifies as male is the gender identification.

So if we allow a biological male who identifies as female to compete against women, then we must also allow a biological male who identifies as male to compete against women, too. To do otherwise would be to discriminate between them for no other reason than their stated gender identity.

Doing away with sex segregation in sport might not be such a terrible thing. After all, we don't permit racial segregation in sports, despite the fact that certain events (such as men's track and field) tend to be dominated by one ethnicity or another. But at least a normal rule-making procedure would have allowed for thoughtful consideration of such issues.

A similar dynamic has played out in Virginia over Democrat Gov. Terry McAuliffe's efforts to restore voting and other civil rights to felons.

McAuliffe took the state by surprise when he issued a sweeping and unprecedented executive order restoring the rights of 206,000 ex-cons. It soon became apparent that the administration had not done its homework. Those benefiting from the order included numerous violent offenders who are still incarcerated and a number of sex offenders being held through indefinite civil commitment.

The administration also overreached when it claimed the ban on felon voting was the product of Jim Crow-era efforts to subjugate African-Americans. (In fact, the ban dates to 1830, four decades before African-Americans could vote, so its effect originally was limited to white males.)

To make matters worse, local registrars were caught off guard and overwhelmed with questions about how to deal with inquiries. The administration had not given them any notice of what was coming—even though it had given notice to liberal activist groups, the better to make a big political splash.

Republicans sued, arguing that McAuliffe lacked the constitutional authority to restore rights en masse—and a split decision of the Virginia Supreme Court upheld their view. It ordered registrars to revoke the voting registration of 13,000 felons who had signed up.

This has monkey-wrenched two elections in Richmond, where one felon is running for the School Board and a mayoral candidate's eligibility hangs on a single felon's petition signature. Nobody is entirely sure how to handle those cases.

McAuliffe blames all this on Republican political game-playing, and he is right to at least a certain extent: While they made a constitutional argument, they seem miffed chiefly by what they see as his effort to help his dear buddy Hillary Clinton win in November. (They might not like the idea of felons serving on juries or acting as notaries public, but they probably wouldn't have gone to war over it.)

Yet they would not have been able to bring a suit in the first place if the governor had followed his predecessors' practice of restoring rights on an individualized basis.

The other day McAuliffe announced that he had restored the rights of the 13,000 previously registered felons and will continue to work his way through the remaining 193,000. Good for him. Now he also has an opportunity to push Republican lawmakers to do what they have refused to do for many years: Put the issue to rest by passing a constitutional amendment automatically restoring voting rights to felons upon completion of a sentence.

Knowingly or not, the governor is now abiding by what has been called the first rule of American business: When all else fails, try doing it right.

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And what the bot really means is that bot objects to letting members of one biological sex use the bathrooms and locker rooms designated for use by the other biological sex, regardless of their self-identification.

I was struck by that as well. Considering the fact that the article is about “monkey wrench policy” it seems almost an obligation for a state AG to defend the State against the obviously illegitimate process employed. Not sure his personal opinion is relevant.

Doing away with sex segregation in sport might not be such a terrible thing. After all, we don’t permit racial segregation in sports, despite the fact that certain events (such as men’s track and field) tend to be dominated by one ethnicity or another.

I like you, Hinkle. I’m not saying I like you best, or anything, but you should know that I’ve always like you.

At high levels, I think it would. Women simply can’t compete head-to-head with men. Hell, the Australian women’s soccer team practiced with a junior high boy’s team and got their asses handed to them.

Doing away with sex segregation means there is only one competition, not two (one for men, one for women). If women have to qualify with and compete against men, the women aren’t making it very far in the competition.

For some sports, such as golf, there is no legal bar for women to compete in the men’s league. Annual Sorenstam participated in a few PGA tournaments on a sponsor exemption during the height of her career. She may have made one cut.

Annika Sorenstam played in one regular PGA tournament, missing the cut. She did play in the Skins Game against Mark O’Meara, Phil Mickelson and Fred Couples, finishing second with 5 skins, according to her Wikipedia page.

If you are a man who identifies as a woman, that’s too bad. You still need to compete as a man. Many many people have problems that disallow them living life the way they would like. There does not need to be special rights for transgenders (or anyone else for that matter).

Sure. If one woman gets into MLB, and the price to pay is that women’s softball teams across America become extinct, this is something I’m completely fine with.

I don’t actually think it’s going to be the sports apocalypse everyone claims will happen when the protections drop from the market, but if apocalypse is the inevitable outcome, then let’s rip that bandaid off.

But one sex dominating sport goes directly against the original goals of Title IX. I am not sure women are going to accept the demolition of women’s athletic opportunities in order to satisfy Hinkle’s OCD about segregation. The knots the government will twist to try to accomplish both would be grotesque.

Alabama Attorney General Luther Strange says he objects to “social experimenters in Washington” writing state policies about bathroom use. What he really means is that he objects to letting members of one biological sex use the bathrooms and locker rooms designated for use by the other biological sex, regardless of their self-identification.

Magic 8-ball told you this, I suppose.

Do they teach clairvoyance in journalism school now, or is one expected to “just do it”?

Barton is diminishing the procedural protections of the APA, weak as they are, even though those protections are the only brake on rule by agency diktat.

It doesn’t help, of course, that in this case the agency has absolutely no statutory authority whatsoever to promulgate transgender anything. But, I suppose that’s just another niggling procedural issue standing in the way of the Greatest Civil Rights Victory of Our Time. One is reminded of the line from A Man for All Seasons about facing the devil after all the laws have been cut down.

Rest assured, though, once the agency goes through the APA motions, the lack of authority will be front and center.

Rest assured, though, once the agency goes through the APA motions, the lack of authority will be front and center.

We’ll get to that soon enough. It’s not like the administration is actually going to bother reading, much less dealing with, anything raised during Notice and Comment. If they gave a fuck, they wouldn’t have issued the policy to begin with.

There us one important difference, the one who identifies as a female wants to be treated as a female, and there are cultural and institutional differences in that which are a direct consequence of the physiological difference between the sexes. Saying there is no difference is disingenuous.

Service members with a diagnosis from a military medical provider indicating that gender transition is medically necessary will be provided medical care and treatment for the diagnosed medical condition, in the same manner as other medical care and treatment.

But the only difference between a biological male who identifies as female Napoleon and a biological male who identifies as male himself is the gender identification male’s mental health status.

Seriously, folks. This is a delusion. Its one that doesn’t prevent many of its sufferers from being perfectly functional, so I’m not saying they should be treated for it against their will, but elevating a delusion to a major civil right that imposes costs on others strikes me as unwise.

If gender identity should be likened to anything in our anti-discrimination laws, it should be religion, not sex, as the former refers to a set of beliefs (like what gender you are) and not to a biological fact.

I had a friend go down that road back in the late 70’s. He was a regular joe, married, good guy. I ran into him a few times after he started wearing a dress, which not a lot of hippie chicks were doing at the time, and trying to get rid of the facial hair. He was surprised and hurt that his wife had left him, which gave me a little insight into his grasp on reality. I don’t think anybody cared which bathroom he/she used and I seriously doubt he was ever confronted on the issue because, as my wife pointed out, we were raised to be polite no matter how crazy people acted. In the end the whole thing just seemed sad to me. Haven’t seen him/her in 35 years and I hope he/she is happy. But I suspect that’s not the case.

Yes. Male or female is something you *are*, trans-anything is what you *believe*. There are people who identify as particular animals. More power to them, but I am under no obligation to play along with them. Princess Fluffypaws remains a human being no matter how intensely she wants to be a cat, and a human being with a penis and testicles but no vagina or ovaries remains a man.

Doesn’t mean that person shouldn’t be treated with dignity and respect, but I refuse to validate things that aren’t actually true just because it makes someone sad if I don’t. When you start affirming falsehoods as truth for political reasons, then there really isn’t any logical endpoint to the things you can declare true by the authority of the state. Someone (Bailey? I think) frequently mentions Lysenko here, and the notion that females can will themselves to be male just because they want to be one certainly seems to fit that category.

I guess I’m willing to accept utilitarian arguments applied to the spending of money the government takes from the citizenry by threat of force. How many millions of dollars ought we to blow “solving” the problems of infinitesimally small groups?

“How many millions of dollars ought we to blow “solving” the problems of infinitesimally small groups?” Historically, folks opposed to LGBT rights have been more then willing to blow millions of dollars creating problems for “infinitesimally small groups”, so I think that cow already left the barn.

That said, it takes all of fifteen minutes for a school to throw an all-hands staff meeting where they tell everyone that yes, Jane was John last year, but Jane can use the girl’s room. So if we’re pulling a “think of the money” card here, it’s literally costing more to fight this then it would be to implement this.

it’s literally costing more to fight this then it would be to implement this.

Yes, that’s the usual tragedy of government regulations: dispersed costs and concentrated benefits.

The federal government has no business regulating who goes to which bathroom, period. What the cost of implementing such idiotic laws is is immaterial. And that comment applies to male/female bathroom usage just as much as to transgender bathroom usage.

Doing away with sex segregation in sport might not be such a terrible thing. After all, we don’t permit racial segregation in sports, despite the fact that certain events (such as men’s track and field) tend to be dominated by one ethnicity or another.

Let the market, you know, the people who buy tickets, decide that instead of letting bureaucrats issue diktats on the matter.

If you took the fastest man in the 100 yard dash and transplanted a woman’s brain into him, would that automatically make him eligible to race against women instead? If you are unfortunate enough to be born male while for some reason thinking you are female, why is this so much more of a burden (with regard to who you get to race against) that someone born with no talent at running at all? Shouldn’t everyone have a right to a talent transplant into those who run too slow?

“Conservatives tend to resist the idea that gender can be fluid and non-binary, and have pushed back hard against it, asserting (among other things) that transgenderism is merely a mental disorder similar to anorexia.”

Until such time as medical science has progressed to the point of – somehow – actually changing a person’s sex, the Conservatives are correct, save for a vanishingly small number of true medical hermaphrodites. And maybe I’m out of touch with current psychiatric thinking, but I was under the impression that humoring a delusion was widely considered harmful. I see no reason why a male who sincerely believes he is or should be female should be treated differently from a human who sincerely believes he is, in some manner, another species or a figure from history or mythology.

Produce a way for people to actually switch sex and my position will change. But the more I look into it, the more the idea that the medical profession takes advantage of the delusional, and mutilates them in the process confirms my low opinion of the vast majority of Doctors.

Until such time as medical science has progressed to the point of – somehow – actually changing a person’s sex, the Conservatives are correct, save for a vanishingly small number of true medical hermaphrodites.

Sex isn’t even well defined in biology. Biological sex finds its expression in terms of primary sexual characteristics, secondary sexual characteristics, chromosomes, sex hormone expression, gene activation, and brain structure. You can have any combination of male/female/intersex characteristics for those criteria alone. A significant percentage of the population deviates from the norm along at least one of those dimensions.

With a tiny ercentage of exceptions, you either have one set of functioning genetalia, or the other. Attempts to deny this truth by descending into biological minutia ignore the gross facts.

Now, I don’t necessarily want to punish the delusional. I just think that the fasion for pretending they aren’t delusional is absurd and possibly harmful to them. Ok, so you weren’t born a woman. I wasn’t born with the genes for the hight and reflexes to me a great basketball player. I cope. I don’t have the innate talent to be a successful comic book artist (I spent about a decade seriously practicing cartooning. I can make the occasional strinking single picture. I can’t do page after page of them. The talent ain’t there) I deal.

You want to wear the other gender’s clothing? I will stand up for your right to do so. When it comes to bathrooms, go to the one you have the plumbing for.

And stay out of the hands of the surgeons. Until further developments, the indications are they can’t really help you.

The medical businesses are selling as “gender reasignment”, proceedures that mutilate the body but do not actually result in change of gender. That’s fraud at a minimum. It also violates the what the medical establishment would like us to believe are the standards of medical ethics, i.e. “First, do no harm”.

If the cutting had a record of satisfying its customers, I would let it slide. Suicide numbers strongly suggest that it doesn’t.

I have a trans friend who had suicidal episodes ALL THE TIME (seriously, this has been a high-effort friendship) before eventually starting hormone therapy, and has noticeably improved since then. Anyway, you don’t seem to understand what gender is, as opposed to sex, but suffice it to say that an animal biologist does not speak of the “gender” of a specimen.

For instance, there’s a real question about the status of gender-fluid athletes. Earlier this year a transgender student won an all-state track and field award by competing against girls, and this year the Olympics accepted transgender athletes for the first time.

Blargh. I know a few trannys (trannies?) and they’re ok people. I don’t know if I’d say they’re like the most normal or sane people I know… But they’re not horrible, and they’re no more crazy than plenty of straight people I know. Their “feelings” about being the wrong sex may well be biological, just like being gay is biological. Honestly whatever the case they are still what they are biologically speaking.

I think private businesses should set their own policies of course. One club where I go that I have met most of the trans people I know has ALWAYS had the policy that you use whatever bathroom you want. It works fine there because of the type of people that go there. Sometimes I’ve used the urinal after a dude in a dress, one of the ones I’m better friends with always uses the female restroom. It works fine.

That said, public facilities should probably stay on the conservative side of this one. I feel like in bathrooms it’s not THAT big of a deal. It could be a little weird to explain why the man in a dress is in the women’s bathroom to your daughter, but you can just tell her it was an ugly broad until she’s older! But locker rooms… That shit can be awkward enough in school without throwing in somebody of the opposite biological sex into the mix.

To me it’s just a matter of math. They’re such a small percentage I don’t understand how THEY can feel like they need the whole world to bend for them. If I had some odd thing about me that upset/weirded out a decent chunk of people, I would try to be polite and not rub it in their face. Like when I was a smoker, I was considerate about it. Why can’t they realize it’s basically the same dif? You may think you’re a woman, but if it’s going to make a bunch of people uncomfortable what kind of an asshole do you have to be to push that onto other people? It’s just inconsiderate.

Seems like it’s just easier to let the minority bear the brunt of the “oppression” on this one. I guess. It’s weird having a “lady” in a dress in the men’s room and explaining that one to your son too I guess. Damn weird people have to make the world so complicated!

As for sports… LOL I would LOVE to see somebody do an open all sex league for some sport just to prove a point. That would really drive home the fact that there ARE REAL gender differences. I love using the sports example when I’m talking to people about the reality that there are differences between genders, because it’s just too obvious to ignore. You get into subtleties of how our brains work and they knee jerk that it can’t be possible, despite tons of scientific literature, but they can’t ignore the sports.

When you get right down to it, everybody on earth believes that the world should accommedate them. It’s just that we have, moreor less by consensus, decided that that doesn’t work. So we make compromises, and try to accommedate the most people we can.

“members of one biological sex [should be able to insist on using] the bathrooms and locker rooms designated for use by the other biological sex”

So a person’s claimed sexual self-identification allows them to use the bathrooms and locker rooms of their choice. A policy seemingly tailor-made to discriminate against young women already struggling with and even embarrassed by sexual urges.

How do you stop male perverts and voyeurs claiming a change in their sexual identification allows them to indulge their sexual perversions at the expense of vulnerable young women? With this policy, you don’t.